The Long Duree of German Criminal Biology

Imanuel Baumann’s thoroughly researched and cogently written study of German criminology makes some bold and provocative arguments regarding the degree of continuity in German criminological thought and practice in the twentieth century. While part of Baumann’s goal in his study was to provide the first comprehensive historical examination of German criminology in the period after 1945, the resulting work is much more than a compensatory history of a heretofore neglected period. Looking at criminological discourse, penal law politics, and penal practice, Baumann seeks to demonstrate what happened to criminal biology after 1945 and when the shift to a more critical, non-biological model of criminality took place.

Two Interpretations of
Postwar Criminal Science

Baumann takes issue with two competing interpretations of the fate of German criminal biology after Nazism, under which biological models of criminality had legitimated murderous state policies regarding criminals. In one interpretation, criminal biology remained the hegemonic interpretive framework until the radical upheavals of the late 1960s, at which point criminologists were more willing to entertain less prescriptive understandings of criminal behavior – signaled with the growing influence of the »labeling approach« in the 1970s. In the other interpretation, the revelations of the Nazi atrocities – including those against criminals and asocials – led to a kind of »Stunde Null« in German criminal science and penal practice, in which wrongfully punished prisoners were turned out and criminologists quickly mended the errant ways they had practiced under the Nazi regime.

While Baumann finds the former rather than the latter interpretation more convincing, neither, he argues, holds up to close scrutiny. For Baumann, the period of continuity is much longer. From 1920 to around 1960, biological models of crime dominated the scientific discourse of those disciplines associated with the study of crime as well as the professional organizations dedicated to the study of crime. It would take the decade of the 1960s for reformers within the discipline to help bring about a fundamental shift in the interpretive orientation of criminology, and not until the 1970s would the fruits of their labor become evident in criminal policies. In Baumann’s analysis, criminal biology enjoyed a very long life indeed.

Nature, Nurture,
and the Criminal Personality

The bulk of Baumann’s research concerns itself appropriately with the period after 1945, but he begins his study by tracing the emergence of the biological interpretation of crime. Here Baumann by his own admission is covering material already well established by previous historians – the cautious reception of Lombroso among German criminal scientists, the influence of Franz von Liszt’s penal reform movement, Julius Koch’s »psychopathic inferiority,« and Paul Näcke’s eugenics. 1 Baumann’s central argument – and the key premise of the book – is that out of the diverse anthropological, legal, and psychiatric models of crime that emerged in 1880s, there developed after 1920 a general consensus regarding the »criminal personality« as a deviation from moral and social morality and that this »personality« was constituted by environmental and biological factors. According to Baumann, criminal scientists did not choose between heredity and environment, but rather saw heredity and environment as two poles of a single spectrum influencing the formation of an individual personality.

The hegemony of this »Anlage / Umwelt-Modell« was in large part due to the institutional development of criminal biology in the Weimar period, specifically with the founding of the Kriminalbiologische Gesellschaft in 1927, which solidified a network of experts from a variety of disciplines with a shared interest in criminal science and progressive penal reform. One of the stated goals of the society was to influence penal reform. Under the Criminal Biological Society, the »Persönlichkeitsformel« became the key concept in criminology in the 1920s and 1930s.

The Dark Side
of Weimar Modernity

In his interpretation of criminology and criminal practice of the period, Baumann is heavily influenced by the work of Detlev Peukert’s notion of the »Janus face of modernity« and the sinister, disciplinary implications of social science and the therapeutic state. In Baumann’s estimation, even those criminologists who embraced progressive penal reform and emphasized the significant role of environment in shaping the criminal personality relied on a »doppelbödige Argumentation,« that »[...] eröffnete den Raum für regressives Deutungspotential« (p. 74). If re-socialization, the goal of Weimar criminology and criminal practice, did not work, the reason would have to lie in the inherited characteristics of the criminal. This explains the widespread acceptance of sterilization as a method of crime prevention across party-political lines (although such drastic measures were not so popular as to be adopted before 1933).

Criminology as
a Helpmate to Nazism

It is not surprising, then, that Baumann sees more continuity than discontinuity in German criminology after 1933. German criminology had a ready-made biological model of deviance that was well suited to the Nazi racial Volksgemeinschaft. It was, after all, the work of Weimar eugenics experts that led to the 1933 sterilization law, which became a tool in penal practice as well. Likewise the »Gewohnheitsverbrechergesetz« of November 1933 was the culmination of reform recommendations of the previous period, as was preventive detention. The »Sonderbehandlung« of criminals also carried over from the earlier period, although in the 1920s the term referred to reeducation and re-socialization, while under the Nazi regime it became a euphemism for extermination. »Die Maxime der Erziehung und Resozialisierung von Straftätern, die von Vertretern der Strafvollzungsreformbewegung in der Weimarer Republik durchgesetzt worden war,« Baumann writes, »wurde nach dem nationalsozialistischen Machtantritt durch regressive kriminalpolitische Vollzugsziele substituiert« (p. 90).

Baumann takes historian Richard Wetzell to task for attributing too much diversity and »normality« to criminal science under the Nazi regime. While figures such as the prominent Edmund Mezger may have conceded the role of environmental factors in criminal biology, the nature / nurture model of criminal behavior was so thoroughly biologized by the 1930s, according to Baumann, that attention to the environment was merely part of the hegemonic discursive system. Mezger, for example, even stated that personality was usually more important than environment in determining criminal behavior. 2 Baumann also points out that it is not merely crude biological determinism that distinguishes bad from good science. Even the carefully researched and methodologically sound work in criminal biology proved attractive to the Nazi world view.

Baumann also points out that institutionally criminal biology became closely connected to the state, especially with the national centralization of criminal biological investigative practice. The preoccupation of the NS regime with criminality furthermore gave criminal biologists – radical, moderate, and in between – the opportunity to influence penal policy; all participated through the Kriminalbiologische Gesellschaft, the local health offices, the Kriminalbiologische Forschungsstelle, and other institutional networks. Under Nazism, Baumann insists that we not underestimate the deadly implications of this criminal science, which increasingly used Weimar terms such as »Sonderbehandlung« and »Ausmerzung« to mean more than re-education and eugenic selection. While his reasoning in this regard is sounder than the evidence, Baumann’s insistence on understanding criminology institutionally and politically as well as ideologically allows him to make a compelling case for German criminal scientists’ deep involvement with Nazi crimes against criminals, asocials, and racialized groups.

No »Stunde Null«

Baumann takes pains to establish the hegemony of biological, personality-based etiologies of crime in the Nazi period because that is what he sees in the postwar period as well. In the most concrete terms, penal laws were extremely slow to change. Not until 1976 was there a national law replacing the May 1934 penal system law, although state laws did exist previous to 1976. The habitual criminal law of 1933 was first modified in 1969, although the Allied Control Commission had banned the castration and execution of »dangerous habitual criminals«. And after 1945, in the context of the widespread social disruptions and rising crime rate produced by the last months of the war, Germans continued to argue for the expediency of preventive detention, although there was increasing lack of clarity over when and even whether it was appropriate. Even as late as 1947, there were still persons in preventive detention who were regarded by the authorities as »erblich belastet«.

There was, according to Baumann, a good deal of continuity in the »personality research« and in the personnel that conducted it, although the emphasis on the criminal personality was after 1945 legitimized by the Weimar goal of re-socialization. A review of the postwar criminological textbooks reveals that a great deal of prewar biologism remained. Mezger, for example, enjoyed a postwar career despite his having been a party member. In his postwar work he continued to place the criminal personality at the center of causation. Baumann asserts that the continuation of personality research should not be surprising if one considers criminal biology as a kind of scale with heredity and environment as opposite poles. Such a spectrum was »wandlungsfähig« and made possible »eine problemlose Angleichung an der veränderten (wissenschafts-)politischen Bedingungen der späten vierziger Jahre« (p. 167). But a shift toward environment did not take place, even though this, too, was part of the longer German criminological tradition.

Baumann argues that specifically »Nazi« elements of German criminology also did not disappear – such as attributions of racial characteristics to »criminal« groups such as »Gypsies«. Baumann finds the same consistency in the legal-political debates over juvenile delinquency in which dominated criminal biological terminology and the demand for sterilization and physiological »cures«. A postwar emphasis on »psychopathology« provided for a basic consensus that the criminal was not »sick« but »deviant« (and thus not eligible for §51 of the StGB) and that »psychopathology« was innate rather than acquired.

Baumann makes such a good case early on in the book for the hegemonic power of the argument from heredity that when he refers to specific »Nazi« criminal-biological concepts, it is not entirely clear what was uniquely Nazi, aside from specific criminal laws. Surely, for example, the Nazis had not invented the racialized identification of »criminal« groups. What he does demonstrate, however, is that there was no serious critical reappraisal of German criminology in this period, nor was there a widespread recognition that criminals, too, had been victims of Nazi criminal policies that had been based on and legitimated by the work of leading criminal biologists.

The First Heretics

Criminology benefited from critical reconsideration of the Nazi period in the 1960s. The most important figure Baumann identifies in this regard is Thomas Würtenberger, whose embrace of humanism and democracy in the immediate postwar years had been largely motivated by careerism. These adopted values later led him to become an outspoken advocate for reform. The Nazi period, according to Würtenberger, had retarded the development of German criminology, which should have been open to international influences. He began calling into question the entire heredity/environment model and cast about for other models, such as those offered by American sociologists. Replacing Mezger as the head of the Kriminalbiologische Gesellschaft in 1961, he worked tirelessly to change the name and the mission of the organization; it finally became the »Gesellschaft für die gesamte Kriminologie« with a new mission in 1967/68.

Würtenberger influenced a trend throughout the associated sciences toward the environmental end of the spectrum and a greater emphasis on re-socialization rather than preventive detention. The reforms were controversial and by no means complete. The first Jürgen Bartsch case trial, for example, illustrated the persistence of the »psychopathic personality« in penal practice. Yet in the retrial in 1971, Bartsch was declared to have had »diminished responsibility« – a sign that reforms were beginning to have an impact. Reformism was also evident in the alternative proposal for penal reform put forth in 1966. This proposal influenced the 1969 law that replaced the 1933 law against habitual criminals.

The »Young« Criminologists

Despite this emphasis on environmental causes of crime and the welcoming of international influences, criminology remained in the 1960s dominated by the older figures who emphasized criminal personality. This changed somewhat with the founding of the »Arbeitskreis Junger Kriminologen« in 1969, whose founding members were united by their junior status in the academy as well as their age – around 30 (although there were some older members). This organization should not be seen, Baumann points out, as a product of the radical student movement; its members were too old to have been seriously influenced by the youth culture movement. It would be this group that would help develop a »critical« criminology through the Kriminologisches Journal and that would help introduce into Germany the »labeling approach« that had already been influential in the United States.

The late arrival of the »labeling approach« should not be seen as a kind of criminological Sonderweg; according to Baumann, even British criminologists came to it rather late. In fact, it is Baumann’s argument that both German and British criminologists came to the labeling approach during a period of »tiefgreifende gesellschaftliche und rechtliche Liberalisierungsphase« after many »crimes«, such as homosexuality, were decriminalized and the relativity of crime was more readily apparent. It was not until the 1970s when there was a thoroughgoing confrontation with the Nazi past in German criminology from an analytical perspective and the embrace of the ideal of rehabilitation rather than retribution – an ideal that was seriously challenged by the economic crises of the decade.

The »Liberalization«
of German Society?

In his introduction, Baumann makes the claim that the development of criminology was a key »indicator« of the transformation of West Germany into a liberal society (p. 22). The case of Thomas Würtenberger certainly would seem to bear that out. Yet Baumann never defines the terms »liberalization« or »Liberalität«, and one is left to presume that he means an increased respect for the rights of individuals and the relaxing of legal controls over social behavior. Although he is careful to point out that the »labeling approach« offered no panacea for reversing the damaging policies of previous decades, there is room here for a more critical engagement with »liberalization«.

For example, Baumann asserts, without much elaboration, that the Halbstarkenkrawalle had played a role prompting a revision of the hereditary model of crime. Given Uta Poiger’s highly provocative study of the Halbstarke in West German cold war cultural politics, 3 it would be well worth elaborating exactly how criminologists and other authorities perceived the »hooligans« from the standpoint of juvenile delinquency and how (or if) the normalization and de-politicization of youth rebellion, which Poiger argues was part of the embrace of a liberal consumerist political orientation in West Germany, played a role in the transformation of criminological models of delinquency in the 1960s.

Absence of Gender
in the Analysis

It is also surprising to find only limited space given to the question of »sexual« criminals, given the recent scholarly interest in the subject and the preoccupation with such »Triebverbrecher« in the Weimar and Nazi periods. Baumann leaves out any consideration of the function of gender in the model of heredity.

Nonetheless, the strength of the study lies in his insistence that criminology, penal practice, and penal policies should be read together rather than as discrete developments. Baumann’s work is an impressive marriage of intellectual and institutional history that will become essential reading for those interested in the development of criminology, penology, and criminal practice.